Exhibit 10.50
SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
This Settlement Agreement and Mutual Release of Claims (the "Agreement") is
entered into by and among Nord Resources Corporation ("Nord"), National City
Bank ("NCB"), Trust Beneficiaries as defined below, the Arizona Department of
Environmental Quality ("ADEQ") and Arimetco ("Arimetco").
WHEREAS, on May 21, 2001, Nord filed its civil action, Case No. C-3-01-210,
captioned Nord Resources Corporation v. National City Bank, in the United States
District Court for the Southern District of Ohio (the "Litigation");
WHEREAS, Nord, NCB, Trust Beneficiaries and Arimetco desire to avoid the
expense, inconvenience, uncertainty and distraction of litigation concerning the
Parties' claims in the Litigation, and have entered into this Agreement to
settle completely all disputes between them under the terms set forth below; and
WHEREAS, Nord and ADEQ desire to reach a certain, expeditious and mutually
acceptable resolution of Nord's violation of ADEQ Consent Order P-4-01 and Title
49, Chapter 2, Article 3 of the Arizona Revised Statutes, at its Xxxxxxx Camp
Mine, 1octed in Cochise County, Arizona, and have reached an agreement to settle
and resolve those violations under the terms set forth below.
NOW THEREFORE, in consideration of the foregoing premises, which shall be deemed
an integral part of this Agreement, and of the mutual covenants and agreements
set forth below, which the Signatories each acknowledge and agree are good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
each, the Signatories each agree as follows:
I. DEFINITIONS
For the purposes of this Agreement, the following are defined terms:
1. The "Rabbi Trusts" are:
A. "Nord Corporation Trust Agreement for Key Executives as Restated,"
including any and all amendments, schedules, parts and terms however
denominated;
B. "Nord Resources Corporation Split-Dollar Life Insurance and
Supplemental Compensation Plan Trust," including any and all
amendments, schedules, parts and terms however denominated; and
C. "Nord Resources Corporation Trust Agreement for Executive Severance
Agreements", including any and all amendments, schedules, parts and
terms however denominated.
2. "Nord" means Nord and its past, present and future representatives,
attorneys, agents, employees, servants, partners, shareholders, officers,
directors, owners, parents, trustees
-2-
(except NCB as trustee of the Rabbi Trusts), heirs, executors, administrators,
subsidiaries, affiliates, successors or assigns of them, or any of them.
3. "NCB" means NCB and its past, present and future representatives,
attorney, agents, employees, servants, partners, shareholders, officers,
directors, owners, parents, trustees, heirs, executors, administrators,
subsidiaries, affiliates, successors or assigns of them, or any of them.
4. "Trust Beneficiaries" means Xxxxxxx X. Xxxxxxxxxxx, Xxxxx X.
Xxxxxxxxxxx, Xxxxxxx X. Xxxx, Xxxxxx X. Xxxx, Xxxxx X. Cruft, Xxxxxxxxx X.
Cruft, Xxxxx X. Xxxxx, Xxxxx X. Xxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxx, Xx., Xxx Xxxxxx Xxxxxxx, Xxxx Xxx Xxxxxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx
X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxx Xxxxxx
and Xxxxxxx St. Clair. "Trust Beneficiaries" also includes past, present and
future insurers or co-insurers of any of these individuals and past, present and
future representatives, attorneys, agents, emp1oyees, servants, partners,
shareholders, officers, directors, owners, parents, heirs, executors,
administrators, subsidiaries, affiliates, successors or assigns of them, or any
of them, as well as any other persons who ever were beneficiaries, are now
beneficiaries or may become beneficiaries of any of the Rabbi Trusts, or who
had, have or may in the future have any interest in the Rabbi Trusts.
5. "ADEQ" means the Arizona Department of Environmental Quality. While ADEQ
is not a Party to the Litigation, it is a Signatory and third party beneficiary
to this Agreement, and a creditor of Nord that possesses claims against Nord for
its violation of ADEQ Consent Order P-4-01 and Title 49, Chapter 2, Article 3 of
the Arizona Revised Statutes.
6. "Arimetco" Arimetco, any past, present and future insurer or co-insurer
of it, and its past, present and future representatives, attorneys, agents,
employees, servants, partners, shareholders, officers, directors, owners,
parents, trustees, heirs, executors, administrators, subsidiaries, affiliates,
successors or assigns of them, or any of them.
7. "Settlement Effective Date" means the fifth business day after the
deadline for filing a notice of appeal from the order of the United States
District Court for the Southern District of Ohio ("the Court") granting final
approval to this Agreement and dismissing the Litigation with prejudice (the
"Judgment"), if no notice of appeal is filed. If a notice of appeal is filed,
the Settlement Effective Date will occur five business days after the latest of:
(i) the date of final affirmance of an appeal of the Judgment, the expiration of
the time for a petition for or a denial of a writ of certiorari to review a
ruling on appeal from the Judgment and, if certiorari is granted, the date of
final affirmance of the Judgment following review pursuant to that grant; or
(ii) the date of final dismissal of any proceeding on certiorari to review the
judgment.
8. "Settlement Notice" means a notice of the Settlement Substantially in
the form of Exhibit _____.
9. "Parties" mean Nord, NCB, and the Trust Beneficiaries, who are parties
to the Litigation.
10. "Signatories" mean ADEQ and Arimetco, who are not Parties to the
Litigation, but who are signatories to this Agreement, and all of the Parties.
-3-
II. TERMS OF SETTLEMENT
1. PAYMENT OF RABBI TRUST FUNDS. On the Settlement Effective Date, the
Rabbi Trusts will terminate and dissolve. Within three business days after the
Settlement Effective Date, NCB shall release and transfer the following funds
from the proceeds of the three Rabbi Trusts as set forth below:
A. $1,000,000 (One Million U.S. Dollars) shall be paid to the Trust
Beneficiaries in care of their counsel into an account designated by
their counsel. Allocation of the $1,000,000 among the Trust
Beneficiaries shall be in accordance with a formula agreed upon by the
respective Trust Beneficiaries.
B. $100,000 (One Hundred Thousand U.S. Dollars) shall be paid to Arimetco
in partial satisfaction of Nord's debt to Arimetco, which shall be
reaffirmed.
C. $1,500,000 (One Million Five Hundred Thousand U.S. Dollars) shall be
paid into an escrow account with Compass Bank, created by the Xxxxxxx
Camp Mine Escrow Agreement dated _______________, 2002 and signed by
Nord and ADEQ. Nord and ADEQ have agreed the monies in the escrow
account shall be available to Nord upon ADEQ's written consent and
pursuant to the terms of the Xxxxxxx Camp Mine Escrow Agreement. A
copy of the Xxxxxxx Camp Mine Escrow Agreement is attached hereto as
Exhibit _____.
2. All remaining funds in the Rabbi Trusts as of the Settlement Effective
Date, if any, after the payments made above, shall continue to be held in the
custody of NCB in an interest-bearing account titled "Nord Resources Trust
Litigation Settlement Account" for 91 days from the date of the latest of the
payments set forth above. Within five business days after the 91st day ("Nord
Payment Date") after the date of the latest of the payments described above in
Sections II.1.A. to II.1.C., NCB will pay to Nord any funds in the "Nord
Resources Trust Litigation Settlement Account."
III. PROCEDURES FOR NOTICE
1. The Signatories recognize that the Court has ordered that notice of this
Agreement be provided to all creditors of Nord, including any unrepresented
beneficiaries of the Rabbi Trusts, in order to give them an opportunity to
object and to permit the Court to evaluate the fairness and adequacy of this
Agreement.
2. Within three (3) days of the date of the last signature to this
Agreement, all Parties will jointly submit to the Court a motion for approval of
notice procedures and preliminary approval of the settlement, substantially in
the form of Exhibit _____. ADEQ will indicate its approval with a separate
letter to the Court. Within five (5) days of the date on the last signature on
this Agreement, Nord will provide to the Court and all Signatories a list of the
names and addresses of all of its known creditors, including all unrepresented
beneficiaries of the Rabbi Trusts.
3. NCB will mail the Settlement Notice to each of Nord's creditors, as
identified by Nord, in the manner and form and at the time directed by the
Court. NCB will certify to the
-4-
Court and all Signatories that notice has been given in conformity with the
Court's direction within two business days after mailing the Settlement Notice.
The cost of duplicating and mailing the Settlement Notice will be borne by the
Rabbi Trusts on a pro rata basis.
4. On a date to be set by the Court in its order granting preliminary
approval of the settlement and approval of notice procedures, the Parties will
jointly file a motion for final approval of the settlement by the Court, with a
proposed order finally approving the settlement, dissolving the Rabbi Trusts,
and dismissing the litigation with prejudice; the proposed order will be
substantially in the form of Exhibit _____. ADEQ will indicate its approval with
a separate letter to the Court.
5. Should this Agreement not be approved by the Court, for whatever reason,
or should this Agreement be approved by the Court subject to conditions that not
all Signatories to this Agreement, in their sole discretion, find acceptable, or
should the Court's approval of this Agreement be reversed on appeal or modified
in a manner that not all Signatories to this Agreement, in their sole
discretion, find acceptable, then this Agreement shall be terminated and
considered void, and all Signatories shall have the same rights and obligations
that they had prior to entering into this Agreement, and all releases set forth
below will be void.
IV. NORD'S BANKRUPTCY
Should Nord declare or be placed in bankruptcy, voluntarily or
involuntarily or commence or become the subject of any insolvency or
receivership proceedings of any kind under any state or federal law, any time
before the Nord Payment Date, all Releases of and by Nord in Section V below
shall be void, and all Signatories shall retain all rights and obligations that
they possessed prior to entering into this Agreement, except to the extent those
obligations are satisfied by payments made in Section II above.
V. RELEASE
For and in consideration of the payments referenced above, Nord, the
Trust Beneficiaries, NCB, ADEQ and Arimetco execute the following releases:
1. MUTUAL RELEASE OF CLAIMS BETWEEN NORD AND THE TRUST BENEFICIARIES. Upon
receipt by Trust Beneficiaries of the payment described above in Section II,
paragraph 1, Nord and Trust Beneficiaries fully, finally, and forever mutually
release and discharge Nord and Trust Beneficiaries and each of them from any and
all claims, contracts, promises, judgments, suits, liens, losses, indebtedness,
rights, damages, costs, fees, expenses, remedies, accounts, demands,
obligations, liabilities and causes of action of every type, nature and
description, including but not limited to all claims relating to the Litigation,
the Rabbi Trusts, deferred compensation, retirement benefits, severance
agreements, deferred supplemental payments, deferred compensation or retirement
benefit plans, insurance of any nature, the management of Nord, the operation of
Nord or the ownership of Nord; however, this waiver and release shall not apply
to Trust Beneficiaries' rights, benefits or privileges under the Nord 401(K)
Retirement Plan for Salaried Employees.
2. RELEASE BY ARIMETCO. Arimetco expressly agrees to forbear from
commencing all Collection actions against Nord, including but not limited to
actions for
-5-
foreclosure on its security interest in the Xxxxxxx Camp Mine, and with respect
to any current or future indebtedness, until two (2) years from the Settlement
Effective Date, and Arimetco's loan guarantee and/or security agreements are
hereby modified accordingly. Anything in this Agreement to the contrary
notwithstanding, Arimetco may commence any collection action against Nord,
including but not limited to an action for foreclosure on its security interest
in the Xxxxxxx Camp Mine, if Nord receives any notice from ADEQ that Nord has
failed to comply with the Compliance Order and Nord does not cure the violation
in accordance with the provisions of the Compliance Order. Nord shall advise
Arimetco immediately in writing of any notice Nord receives from the ADEQ
pertaining to (1) any failure by Nord to comply with the terms of the Compliance
Order, (2) any failure by Nord to cure the violation according to the provisions
of the Compliance Order, and/or (3) any extension by the ADEQ of the time
permitted to cure the violation. Anything in this Agreement to the contrary
notwithstanding, Arimetco may commence any collection action against Nord,
including but not limited to an action for foreclosure on its security interest
in the Xxxxxxx Camp Mine, if Nord fails to provide Arimetco with any of the
notices required by this Agreement. Arimetco waives all default-rate interest,
late charges and penalties accrued through the date of this Agreement. Except as
otherwise provided in this Agreement, the security position of Arimetco with
respect to the Xxxxxxx Camp Mine and other assets of Nord, as applicable, shall
be unaffected. Arimetco shall have the right to assign its rights under this
Settlement Agreement to any third party.
3. RELEASE BY ADEQ. Nord and ADEQ have agreed to resolve and settle Nord's
violation of ADEQ Consent Order P-4-01 Title 49, Chapter 2, Article 3, in the
following manner:
A. ADEQ shall issue a Compliance Order to Nord requiring that it bring
the Xxxxxxx Camp Mine into compliance with Arizona's aquifer
protection laws within the time frames set forth therein. Nord shall
fully and timely comply with the Compliance Order. ADEQ shall not
issue the Compliance Order before the Settlement Effective Date.
X. Xxxx and ADEQ shall enter into a Stipulated Judgment and Stipulated
Judgment Entry Agreement. The Stipulated Judgment sets forth Nord and
ADEQ's agreement that ADEQ shall have a judgment against Nord for
civil penalties in the amount of $4,325,000 (U.S. Dollars) pursuant to
Arizona Revised Statutes Section 49-262 as a consequence of Nord's
violation of ADEQ Consent Order P-4-01 and Arizona's aquifer
protection laws through the effective date of the Compliance Order.
The Stipulated Judgment Entry Agreement sets forth Nord and ADEQ's
agreement that ADEQ may not file for entry of the Stipulated Judgment
unless and until Nord violates the Compliance Order and fails to
timely cure that violation, or Nord becomes the subject of a
bankruptcy, insolvency or receivership proceeding prior to achieving
compliance with this Order.
X. Xxxx and ADEQ shall enter into the Xxxxxxx Camp Mine Escrow Agreement.
The Xxxxxxx Camp Mine Escrow Agreement creates an escrow account, into
which $1,500,000 shall be deposited by Nord, and which shall be used
pursuant to the terms of the Xxxxxxx Camp Mine Escrow Agreement.
-6-
D. ADEQ covenants not to xxx Xxxx for any claim arising under Title 49,
Chapter 2, Article 3 of the Arizona Revised Statutes provided that
Nord funds the escrow account created by the Xxxxxxx Camp Mine Escrow
Agreement and complies with the terms and conditions of the Agreement,
the Xxxxxxx Camp Mine Escrow Agreement, and the Compliance Order. This
covenant Not to Xxx is limited to Nord's violations of Title 49,
Chapter 2, Article 3 of the Arizona Revised Statutes and Nord's
violation of the ADEQ Consent Order P-4-01 and does not limit the
State's right to pursue any other claims relating to or arising out of
any other matters whatsoever against Nord.
E. Paragraphs A through E constitutes the entire agreement between Nord
and ADEQ and all documents referenced in A through D shall be merged
and incorporated into this Agreement, and shall be governed by the law
of Arizona.
4. MUTUAL RELEASE BETWEEN NORD AND NCB. Nord and NCB expressly release,
discharge, terminate and otherwise extinguish any and all actual and potential
claims of any type that they may have against each other arising out of,
relating to or in any manner concerning the Rabbi Trusts, deferred compensation,
retirement benefits, severance agreements, deferred supplemental payments,
deferred compensation or retirement benefit plans, insurance of any nature, the
management of Nord, the operation of Nord, the ownership of Nord or the
Litigation, including but not limited to claims in breach of contract, tort,
equitable relief or any other damage, costs, expense or loss of any nature
whatsoever whether based on a tort, contract or other theory of recovery and all
claims that were asserted or could have been asserted in the Litigation.
5. MUTUAL RELEASE OF CLAIMS BETWEEN NCB AND TRUST BENEFICIARIES. NCB and
Trust Beneficiaries fully, finally and forever mutually release and discharge
NCB and Trust Beneficiaries and each of them from any and all claims, contracts,
promises, judgments, suits, liens, losses, indebtedness, rights, damages, costs,
fees, expenses, remedies, accounts, demands, obligations, liabilities and causes
of action of every type, nature and description, whether known or unknown, or
past, present or future, relating to the Litigation, the Rabbi Trusts, deferred
compensation, retirement benefits, severance agreements, deferred supplemental
payments or deferred compensation or retirement benefit plans.
6. WARRANTY. Nord, Trust Beneficiaries, NCB, and Arimetco represent and
warrant that each alone is the proper Party to assert the claims alleged by each
in the Litigation and that each Party has not assigned all or any part of any
claims the Parties asserted or could have asserted in the Litigation or which
are being released in this Agreement.
VI. NORD, NCB, ADEQ AND ARIMETCO ARE NOT RESPONSIBLE FOR DISTRIBUTION OF
COLLECTIVE SETTLEMENT TO TRUST BENEFICIARIES
Trust Beneficiaries, individually and collectively, agree that this
Agreement is a collective settlement, and that Trust Beneficiaries alone,
without any control, input, recommendation or advice y or from Nord, NCB, ADEQ
and Arimetco, shall decide and agree upon the distribution of the $1,000,000
(One Million Dollars) collective settlement to all Trust Beneficiaries. Trust
Beneficiaries agree that Nord, NCB, ADEQ and Arimetco shall have no
-7-
liability or obligation in regard to the distribution of the collective
settlement to Trust Beneficiaries.
VII. CONTINUATION OF THE TEMPORARY RESTRAINING ORDER AND DISBURSEMENTS OF FUNDS
TO NORD
The Parties stipulate to the continuation of the Temporary Restraining
Order ("TRO") entered by the Court in the Litigation (including authorizing
disbursements for ongoing expenses consistent with the Court's existing order,
including but not limited to payroll) so as to permit the preparation of final
documentation, approval by all necessary Signatories and approval by the Court
of this settlement. The TRO will be dissolved upon final Court approval of this
Agreement. During the pendency of the TRO, only expenses consistent with the
Court's prior orders will be approved y the Court. Prior to the dissolution of
the TRO, Nord will submit to the Court, in an amount consistent with the Court's
prior orders, a budget necessary to maintain Nord until the Nord Payment Date.
The other parties will be entitled to offer reasonable objections to Nord's
request.
VIII. ADDITIONAL CONDITIONS FOR SETTLEMENT
1. COMPLIANCE WITH COMPLIANCE ORDER AND APP APPLICATION. Nord shall
immediately take all steps necessary to bring itself into compliance with the
Compliance Order issued by ADEQ. Without limiting the foregoing, Nord shall
apply for the permits necessary to allow ongoing operations at the Xxxxxxx Camp
Mine and to permit closure of the Xxxxxxx Camp Mine, if such action becomes
necessary or appropriate.
2. PAYMENT OF OTHER GENERAL CREDITORS. Other general creditors of Nord
shall be paid by Nord in the ordinary course of its business activities from
available funds paid to Nord pursuant to Section II, paragraph 2 of this
Agreement. Nord shall make no payment to its officers, directors or
shareholders, other than paying officer salaries or directors' fees in the
normal course of business (as set forth in Schedule _____ hereto), without first
filing with the Court a declaration signed under penalty of perjury certifying
that Nord has (i) paid all of the undisputed claims of its general Creditors, or
(ii) that the proceeds paid to Nord under this settlement have been exhausted.
3. INSURANCE PROCEEDS FROM THE LIGHTNING STRIKE. All insurance proceeds
relating to the lightning strike at Xxxxxxx Camp Mine shall be property of Nord.
4. ISSUANCE OF STOCK AND INCURRING DEBT OBLIGATIONS. Nord shall have the
right to make or issue stock, profit participation interests, debt, or similar
securities so long as such issuance does not materially impact the rights of the
Signatories to this Agreement.
5. NON-DISPARAGEMENT. No Party shall disparage the business or reputation
of any other Party.
6. DISMISSAL OF CONTEMPT PROCEEDINGS. Counsel for Trust Beneficiaries shall
recommend to the Court in the Litigation or support the dismissal of the
-8-
pending contempt proceedings without further sanction. NCB does not agree to any
recommendation of the dismissal of the contempt proceedings.
7. COOPERATION OF MAKING THIS AGREEMENT FINAL AND EFFECTIVE. All
Signatories to this Agreement will cooperate completely and in good faith to
obtain Court approval of this Agreement and to ensure the prompt execution and
filing of all necessary documents to effectuate that purpose and to do all other
acts reasonably necessary or requested by any other Signatory in order to
accomplish such purpose.
IX. EXECUTION OF DOCUMENTS
The Signatories shall promptly execute and deliver, or cause to be
executed and entered, any and all further documents as may be necessary to fully
consummate the undertakings of the Signatories as contemplated by this
Agreement.
X. DISMISSAL OF LAWSUITS, OTHER CLAIMS AND ACTIONS
On the date the Court approves this Agreement, the Parties
specifically authorize and instruct their counsel to execute all documents
necessary to a dismissal with prejudice of all claims, counterclaims and
cross-claims in the Litigation, consistent with the terms and conditions set
forth above, and all similar actions.
XI. RETURN OF NORD PACIFIC LIMITED SHARES
All stock and share certificates that were pledged as security for the
TRO will be returned to Nord on the Nord Payment Date.
XII. COMPLETE AGREEMENT
This Agreement contains and sets forth all of the terms agreed to by
the Signatories and sets forth the complete understanding and intentions of the
Signatories. All discussions, negotiations, understandings and agreements of the
Signatories are merged into this Agreement and no discussions, negotiations
understandings or agreements that are not set forth in this Agreement shall be
binding upon any party. No amendment, modification or supplement to this
agreement shall be valid unless evidenced by a writing signed by all Signatories
to this Agreement, subject to Court approval.
XIII. APPLICABLE LAW
The validity, meaning interpretation, enforcement and effect of this
Agreement shall be governed by the law of the State of Ohio. Exclusive
jurisdiction for all disputes arising under this agreement shall be in the
Court. The prevailing party in any such dispute shall be entitled to reasonable
attorney's fees and costs.
XIV. RELIANCE IN ENTERING INTO THIS AGREEMENT
Entering into this Agreement, each Signatory has not relied upon any
statements or representations regarding their rights by any other Signatory,
their agents or their attorneys.
-9-
On the contrary, each Signatory has considered all of these matters themselves
and has relied upon their own judgment after consultation with their attorneys.
This Agreement is being entered into only after each Signatory and their
attorneys have had a full and complete opportunity to make their own independent
evaluations regarding the strength of each Signatories' claims and rights
against all other Signatories.
XV. INDEMNIFICATION
Nord shall indemnify, defend and hold harmless NCB from and against
any and all losses, claims, damages, liabilities and costs, as and when
incurred, to which NCB may become subject or which are asserted against NCB,
directly or indirectly relating to NCB entering into this Agreement or taking
the actions required of NCB under this Agreement.
XVI. MISCELLANEOUS PROVISIONS
1. The terms of this Agreement are not and should not be construed as an
admission of liability or wrongdoing on the part of any Signatory. Each
Signatory in fact denies any wrongdoing or any liability to all others.
2. This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the Signatories' respective heirs, executors, administrators,
representatives, successors, and assigns.
3. This Agreement may be executed in multiple counterparts in order that
each Signatory might retain an executed original. Each counterpart may serve as
the original Agreement.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
NORD RESOURCES CORPORATION
STATE OF NEW YORK
COUNTY OF NEW YORK
The foregoing instrument was acknowledged before me this 6th day of June, 2002
by Xxxx X. Xxxxxxxxx.
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Notary Public
My commission expires:
XXXXX X. XXXXXXX
Notary Public, State of New York
Qualified in New York County
No. 01ME6018225
Commission Expires January 4, 03
